TRAN Committee Report

SUPPLEMENTARY REPORT

OF THE

NEW DEMOCRATIC PARTY OF CANADA

Study on the Aircraft Certification Process 

The tragic accidents involving Lion Air Flight 610 and Ethiopian Airlines Flight 302 took the lives of 346 people and deeply affected their families, friends and loved ones, including many Canadians. Any loss of life in an air accident is tragic and deeply shocking, but these disasters were made all the more concerning as they involved brand-new aircraft, the Boeing 737 MAX, and resulted in that model’s worldwide grounding.

While the New Democratic Party supports the findings and recommendations of the majority report, we do not believe it captures fully the testimony and calls to action presented by representatives of the families affected by the tragic accidents involving Lion Air Flight 610 and Ethiopian Airlines Flight 302. It is for this reason that the NDP is issuing this supplementary opinion with a crucial additional recommendation. 

Investigations by the National Transportation Safety Board in the United States and the Joint Authorities Technical Review, comprised of civil aviation authorities from a number of states including Canada, alongside air accident investigations in both Indonesia and Ethiopia, have revealed that the 737 MAX’s flight control system and in particular the Maneuvering Characteristics Augmentation System (MCAS) resulted in a runaway trim stabilizer incident that in both crashes caused the pilots to lose control of the aircraft. 

Serious questions have rightly been asked about the certification of an aircraft with a feature unknown to many pilots—MCAS—that relied on a single Angle of Attack sensor. An erroneous reading from this single sensor put at risk the airworthiness of the aircraft by automatically pitching the nose downwards.

Since the crashes, revelations of a lax safety culture and inadequate oversight mechanisms at both Boeing and the FAA in the United States have been shocking. As detailed by the US House Transportation Committee’s final report, commercial pressures to match its competitor’s sales saw Boeing hide key safety concerns with the MCAS software on the 737 MAX from regulators. At the same time, the FAA’s dependency on the designated authority system, by which Boeing employees also acted as safety inspectors for the regulator, created a conflict of interest that allowed corporate interests to influence safety decisions at the FAA. 

Concerningly, the US House Transportation Committee remain unsatisfied that these failings have been adequately addressed, as its final report details: 

Producing a compliant aircraft that proved unsafe should have been an immediate wake-up call to both Boeing and the FAA that the current regulatory system that certified the MAX is broken. Unfortunately, serious questions remain as to whether Boeing and the FAA have fully and correctly learned the lessons from the MAX failures. 

The troubling findings in the US raise important questions concerning the validation of US-certified aircraft here in Canada. Over the course of this study, it became increasingly clear that Canadian experts at Transport Canada Civil Aviation (TCCA) have become overly reliant on certification of aircraft by other states, including the US. In light of the tragic circumstances of the 737 MAX 8, Canada must reconsider a number of international agreements with other certifying authorities that support the mutual recognition of aircraft certification and reduce the role of TCCA in performing additional technical assessments.

In particular, Canada must reassess the Validation Improvement Roadmap signed by the TCCA and FAA on 19 November 2018. The Roadmap aimed at further integration of aircraft certification, with a stated goal of “reduced or no further technical review or additional issuance of validation approvals.” As the committee heard from a wide range of witnesses, including Mr. Nicholas Robinson of TCCA, Mr. David Curtis of Viking Air Limited, Mr. Rob Giguere of the Air Canada Pilots Association, and Mr. Tim Perry of Air Line Pilots Association Canada, Canada has the technical expertise to conduct more in-depth assessments of its own. Mr. Robinson, Mr. Giguere, and Mr. Perry further testified that this should be pursued by TCCA in the future, especially given the troubling safety concerns that have come to light with regard to Boeing and the FAA. 

Most significant, however, is the impact that this tragedy has had on the families of the victims. Their grief is unimaginable and all New Democrats extend our sincere sympathies for their loss. As Mr. Paul Njoroge attested, the crashes brought not only deep psychological pain to the family of victims, but also real physical suffering and profound isolation. Both he and Mr. Chris Moore also spoke to the impact on the wider community: Mr. Moore pointed out the impacts on victims’ professional communities and the causes they cared about, while Mr. Njoroge attested that schoolmates of the children he lost were so affected as to develop a fear of flying. This is consistent with the observation of Mr. Curtis that the tragedies have undermined public confidence in the aircraft certification process. 

To address these impacts, victim family representatives were unequivocal that a public inquiry remains necessary. As Mr. Njoroge testified:

Improvement of this validation process should start with an independent inquiry into decision-making by the transport minister and Transport Canada, both before and after the 737 Max crashes. Canadians deserve a competent and transparent process. 

Such an inquiry would address the clear concerns families voiced with respect to the conduct of the TCCA and the actions that could have been taken to avoid these tragedies. Over the course of their testimony and the Committee’s study, it became clear that a number of questions remain and need to be answered. Collectively, these amount to two key concerns:

• How it is that Canada came to validate an aircraft which was fundamentally unsafe?
• Why was this aircraft not immediately grounded after the first accident to avoid any further loss of life?

The first area of concern focuses on a number of questions concerning the TCCA’s validation of the 737 MAX following its certification in the United States, a process that has now been revealed to be deeply flawed. In particular, two concern papers written by technicians at Transport Canada and left ‘open’ at the time of validation require further explanation. 

These letters related to the “interpretation of stall identification” and “automatic flight control system anomaly” following Transport Canada test flights in 2016. In C-FT 04, the test pilots reported an unexpected pitch up of the nose during rapid descent and officials wondered if the opposite could also occur, pitching the nose downwards during ascent. Officials expressed dissatisfaction with the official explanation received from Boeing. They highlighted that this functionality in automatic pitch would likely come as a surprise to flight crews at a time of already increased workload and questioned its compliance with Canadian airworthiness regulations. 

Despite the clear concerns expressed by experts at Transport Canada, validation of the aircraft was allowed to continue with these concerns outstanding. Notably, both letters, in explaining the decision to proceed, cite the need to avoid delaying Boeing's delivery commitments to Canadian operators. 

Canadians rightly want to know how the 737 MAX came to be validated even when Transport Canada officials were identifying serious safety concerns with the anti-stall and flight control systems. They also want to know how it is that the commercial implications for the aircraft manufacturer came to be considered in what should primarily be a safety examination. On many of these questions, the committee did not receive satisfactory answers. A more in-depth technical review of the validation process is now surely warranted, as highlighted by Mr. Moore: 

We know a lot about what happened in the States, but we know nothing, really, of what happened in Canada, and what our civil aviation group knew and didn't know. 

The second set of unanswered questions relates to Transport Canada’s response to the first crash of Lion Air Flight 610 on 29 October 2018 and the information the FAA and Boeing provided to Canadian officials regarding the causes of that crash. Once it occurred, this first incident should have caused all civil aviation authorities to seriously examine the safety and airworthiness of the 737 MAX. Thus, there is a crucial need to evaluate the steps Transport Canada took to determine if more should have been done, and to assess whether additional actions could have prevented the further loss of life five months later on Ethiopian Airlines Flight 302. This is an area of particular importance to victims’ families, as Mr. Njoroge testified:

[T]he crash that killed my family was preventable. Aviation regulators across the world were not diligent enough in their dispensing of regulatory authority over the certification and validation of the 737 Max plane. Certainly, Canada would not have lost its 18 citizens and unknown numbers of permanent residents had Transport Canada made prudent decisions after the crash of Lion Air flight 610. 

Witness testimony raised several questions concerning Transport Canada’s decision-making process. Areas that need to be examined include: 

• Communication between the FAA and Transport Canada following the Lion Air disaster, including what information on the cause of the crash was received at a 7 November 2018 meeting between the agencies;
• Information relayed by Boeing and the FAA on the continuing risks of MCAS and the 737 MAX, particularly the FAA’s Transport Airplane Risk Assessment Methodology (TARAM) report, which predicted 15 more fatal accidents over the aircraft’s lifespan; and
• The reasoning behind Transport Canada adopting an FAA airworthiness directive on 8 November 2018 requiring additional memory aids for pilots rather than grounding the plane while the accident was investigated. 

As summarized by Mr. Moore, these are important questions that need resolving: 

How a second crash could happen is beyond me. That's what I want to get down to. This doesn't usually happen. We think Transport Canada played a role in it. 

Reinforcing the consistent calls of victims’ families, multiple witnesses corroborated the benefits of a public inquiry to address these unresolved questions. Engineering expert Mr. Gilles Primeau suggested that an independent inquiry could be an opportunity for professionals to examine data that the victim families have requested and that have not been released on grounds of confidentiality. He noted that this could “start changing the pattern” of Boeing and the FAA refusing to provide proper answers. Ms. Kathleen Fox, Chair of the Canadian Transportation Accident Investigation and Safety Board (TSB) meanwhile indicated that the TSB, despite its unique impartiality, was prevented by its mandate from answering the outstanding questions family members have. It could not, for example, assign fault or determine civil or criminal liability. Furthermore, when asked whether, after the tragedies, the TSB could have undertaken investigations into the 737 MAX in Canada, or whether it could comment on international investigations, Ms. Fox indicated that the TSB had no formal or mandated role. It is in this context that the New Democratic Party joins the families of Boeing 737 MAX victims in echoing Mr. Chris Moore’s call: 

[W]e demand that the actions taken by Canada's transport minister and civil aviation agency be examined as they pertain to validation and continuous operational safety of the Max. Only a thorough independent inquiry can achieve this. 

Recommendation 1

That the Government of Canada launch, as early as possible, a public inquiry into Canada’s aircraft certification process and its role in certifying the Boeing 737 MAX 8, as well as Transport Canada’s actions following the Lion Air crash in 2018.